Business Law Exam 1

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divine right of kings

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kings believed that they were given power to govern from god

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natural rights theory

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universal moral and principles are inherent in human nature

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positive and legal realism

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predictability and enforceability of laws created by govt are essential

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lawsuit remedies

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damages, and equitable relief

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stare decisis

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look to decided cases, use precedent (follow the decisions of higher courts)

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stare decisis (exceptions)

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precedent is unjust, precedent is vague, changing times require new interpretation, dicta: things that dont apply to the case, judicial judges have power to interpret the law

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where law can be found

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constitution, treaties, statutes, administrative regulations, case law

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fiduciary

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a person who stands in a position of trust and confidence to another person, he owes a duty of complete loyalty and obedience

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ethics of duty

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fundamental rules needed for an organized society to exist (Thou shalt nots)

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ethics of excellence

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our ideals for perfection and "living the good life"

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personal ethic

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honesty, truthfulness, tolerance, charity, loyalty

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societal ethic

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collective personal ethics, religions, philosophies, and ideals (work ethic)

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individual ethic

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individual is supreme (bill of rights, darwinism)

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community ethic

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community is supreme (communism, socialism, totalitarianism)

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utilitarian

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be happy, a good society is a happy society

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step 1: the complaint

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court pleading, must have: facts show jurisdiction of the court, plaintiff entitled to relief

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step 2: notify defendant of complaint

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summons served through: personal service (sheriff of U.S. marshall), substitute (to agent or family must be 13), certified mail, publication

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step 3: defendant responds to summons

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1. do nothing (plaintiff wins)
2. motion to dismiss (if court approves case is thrown out)
3. admitting insufficient evidence or info
4. sue plaintiff through counterclaim
5. file setoff, seeking credit for from different independent transaction
6. file crossclaim against fellow defendants in the same case
7. file third party claim against new defendant bringing them into the case

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step 4: discovery

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1. depositions: intended to find out what a witness will testify when case goes to trial
2. interrogatories: written questions sent to the other party in the lawsuit that must be answered under oath
3. requests to produce: motions made in court to obtain documents and things for other parties to review

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step 5: pretrial motions

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if issues dont exist before trial, the court can grant judgement without trial (rare).
summary judgement: if there is no material question of facts left to decide after a party submits supporting affidavits, then judge can decide a case upon the law

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step 6: the trial

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bench trial or jury trial.
jurors selected by voir dire: no bias or predjudice.
12 jurors, sometimes 6.
lawyers can bump people of juries with challanges.
lawyers then make opening statements.
evidence is presented through testimony of witnesses.
evidence must be relevant b4 the judge will find it admissable evidence that is predjudicial is not admissable. evidence that is hearsay is not admissible.
direct examination: questions can not be leading
cross examination: questions should be leading
subpoena: court order served on a person requiring that person to testify in court

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step 7: end of trial

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plaintiff must prove his case with evidence, each parties lawyer gives final arguments, defendants often make motion for directed verdict (this tells judge that all elements of the case have not been proven by the plaintiff

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step 8: post trial motions

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motion for judgement N.O.V. the losing party asks the judge to decide the case notwithstanding the verdict made by the jury.
motion for new trial: losing party asks for retrial based on some sort of error made during the trial.
Res judicata: once case is heard and decided it can never be used again

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trial court --->

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district court

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appellate court---->

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court of appeals

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highest court of appeals------->

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supreme court

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long arm statutes

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sufficient "minimum contact with a state will subject a party to the personal jurisdiction of that states court

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subject matter jurisdiction

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the type of case that the court is allowed to hear

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personal jurisdiction

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the right to subject a person an individual to the subject of the court

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summons

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court paper that orders a person to appear in court

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certiorari

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process by which a party asks the U.S. supreme court for permission to appeal their case

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fed questions jurisdiction

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when constitutional or federal statute questions arise

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diversity jurisdiction

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a case can start in federal court if the amount in question exceeds $75,000 and all plaintiffs are from different states than all defendants at the time the lawsuit is filed